Are College Athletes Employees?

March Madness resumes on Thursday, and you’ll be hearing the announcers celebrate the talent and dedication of the so-called amateur student athletes on the court. That phrase used to be considered an honorific, but in recent years—owing to stagnant graduation rates, high-profileacademic scandals, and the ever-increasing revenues that sports such as men’s basketball and football bring to their schools—it has been more like a feeble euphemism. It reflects an outmoded myth about amateurism that leaves players unpaid, unable to advocate for their health and safety, and without even the normal freedoms that other college students have.

We need a more accurate vocabulary to talk about these players. A decision this week by the Chicago district office of the National Labor Relations Board offers one plain, useful term: employees. In a ruling issued on Wednesday, the N.L.R.B. regional director Peter Sung Ohr found that scholarship players on the Northwestern University football team are employees of the school, and therefore have the right to form a union. That finding, which Northwestern opposes and says it will appeal, applies only to private schools. (Students at public universities are subject to state labor laws.) Although the decision specifically concerns the Northwestern football program, its description of the life of college athletes calls the N.C.A.A.’s entire amateur model into question.

In January, Kain Colter, who had just finished a season as Northwestern’s quarterback, filed a petition on behalf of his teammates to form a union. The players were backed by a new organization called the College Athletes Players Association, and received financial support from the United Steelworkers. In testimony before the board in February, Colter said plainly that playing football had been a job.

Ohr, in his spirited and at times feisty decision, agreed: “Under the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.” In the case of Northwestern’s scholarship players, the contract is the scholarship agreement that they sign with the university; the control is the pervasive and constant oversight by coaches; and the payment is the dollar value of the scholarship itself, which amounts to sixty-one thousand dollars per year for most players and seventy-six thousand dollars for those who also enroll in summer classes. Northwestern had argued that, rather than a payment, a scholarship should be considered a grant. Ohr, however, wrote that “the scholarship is clearly tied to the player’s performance of athletic services as evidenced by the fact that scholarships can be immediately canceled if the player voluntarily withdraws from the team or abuses team rules.”

The number here is the revenue that Northwestern’s players generated for the school—two hundred and thirty-five million dollars between 2003 and 2012—and the comparative unfairness of a capped scholarship system that makes no distinction among players’ abilities or contributions to the team. Scholarships fail to cover all the expenses that players incur during their years in college. And yet the N.C.A.A. forbids these players from entering into their own endorsement deals or otherwise profiting from their temporary status as local football heroes. It punishes them when they do.

On Wednesday, the N.C.A.A. was quick to emphasize the financial implications of the decision: “We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.” This statement is almost obscene in its feigned naïveté, as if major college sports were still just some intramural frolic on the green after dinner. Tell that to the gamblers in Las Vegas—and to the coaches, athletic directors, administrators, and business interests that profit from these games played by supposedly grateful amateurs. The N.C.A.A. has a ten-billion-dollar television contract for the men’s basketball tournament. At Northwestern, players sign away rights to their image to the school and to the Big Ten conference.

The statement also misrepresents the demands of the players in this case. Colter and his former Northwestern teammates weren’t asking for more compensation. Instead, they sought the right to bargain collectively with the school over the conditions of their services as players. Ohr goes into great detail about the ways in which the lives of football players are different from those of other students at Northwestern. It is a striking portrait of a paternalistic and isolating experience. They must comply with the team’s regulations regarding the use of social media, and aren’t allowed to give interviews that aren’t scheduled by the athletic department. Upperclassmen living off campus must get their leases approved by the coach. Players need to obtain approval from the athletic department before getting an off-campus job. They have to tell their coaches about the cars that they drive.

These are examples of the kind of control that employers exert over employees, Ohr argues, and those subject to such control should have the right to bargain.

The College Athletes Players Association, which is hoping to represent Northwestern’s players, has said that it is also interested in “guaranteeing coverage of sports-related medical expenses for current and former players, ensuring better procedures to reduce head injuries and potentially letting players pursue commercial sponsorships,” according to the Associated Press. These measured demands only serve to make the opposition from the N.C.A.A. and its member schools look more retrograde and extreme. There isn’t even a guarantee that Northwestern’s players would choose to unionize; they simply want the chance to vote.

In a way, Northwestern football is an odd test case. The program’s graduation rate (above ninety-seven per cent) is the best in the country. Yet, based on the testimony of players, Ohr figured that students devoted between forty and fifty hours a week to football, and just twenty to school. And, he writes:

The fact that the players undoubtedly learn great life lessons from participating on the football team and take with them important values such as character, dedication, perseverance, and team work, is insufficient to show that their relationship with the Employer is primarily an academic one.

Ivan Maisel, of ESPN, raises a smart series of concerns. There is, for example, a potential problem of scope. Ohr’s decision covers only scholarship players on the football team. What about athletes who play other sports? “The workload of the college athletes in non-revenue sports is also extreme,” he writes. “They also sign that contract to perform services. They are subject to the control of the coaches, and in return for payment. By these criteria, they deserve to join the union, too.” And the decision covers only men. Women’s sports often lose money. Does that mean that the female athletes in these sports are students, rather than employees, and thus undeserving of union protection?

But that’s no argument in favor of maintaining a vastly flawed and unfair status quo. This week’s decision joins a legal conversation that includes several other cases—including an antitrust suit originally filed by the former U.C.L.A. basketball player Ed O’Bannon over the rights of players to be paid for the use of their likeness, and, more recently, a case filed by the labor lawyer Jeffrey Kessler which argues that scholarships unfairly suppress player compensation.

Ohr’s decision may get overturned by the full board, in Washington, on appeal; it may be fought in the courts. But, at the very least, it has added a cogent voice to the debate over the role of sports in American higher learning (and vice versa). College players may not be “student athletes,” but they are something more remarkable: students and athletes, who have managed to go to college while working rigorous, full-time jobs.

Photograph of Kain Colter by John Mersits/Cal Sport Media/AP.

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